Title of Regulation: 12VAC5-630. Private Well Regulations (amending 12VAC5-630-460; adding 12VAC5-630-271, 12VAC5-630-272).

Statutory Authority: § 32.1-176.4 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 1, 2012.

Effective Date: August 16, 2012.

Agency Contact: Allen Knapp, Director, Division of Onsite Sewage, Water Services, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7458, or email allen.knapp@vdh.virginia.gov.

Basis: Section 32.1-176.4 of the Code of Virginia requires the board to adopt regulations pertaining to the location and construction of private wells in the Commonwealth. Chapters 105 and 710 of the 2009 Acts of Assembly require the board to adopt the proposed amendments.

Purpose: The first of these two amendments is intended to improve the welfare of the citizens of the Commonwealth by reducing costs associated with construction of geothermal well systems. The amendment establishes an express geothermal permit which allows construction of wells used solely for closed loop geothermal heating systems via a streamlined process. Public health and safety are preserved by allowing VDH an opportunity to inspect well construction. Fees for these wells are also reduced. Prior to the 2009 legislation VDH charged an application fee for each group of 10 wells. The amendment provides that VDH will charge one fee for each geothermal heating system, regardless of the total number of wells constructed.

The second amendment protects public health and welfare by establishing minimum well yield and storage requirements for residential drinking water wells. These minimum requirements will assure an adequate supply of drinking water and water for essential activities such as toilet flushing, bathing, and cooking. There have been several cases where a home buyer has learned of a low-yield well only after purchasing and moving into a new home. Prior to the 2009 legislation the board’s regulations contained only recommended minimum yield and storage requirements. Setting minimum well yield and storage requirements further protects the welfare of citizens of the Commonwealth by reducing potential financial burdens associated with homes that have an inadequate supply of water.

Rationale for Using Fast-Track Process: The enabling legislation (Chapters 105 and 170 of the 2009 Acts of Assembly) and the language of the amendments tracks the language in the Code of Virginia as closely as possible. VDH worked closely with the Virginia Water Well Association (VWWA) in drafting these amendments and believes that the amendments adopted September 25, 2009, accomplish the minimum requirements of the 2009 legislation.

In October 2010, while this regulatory action was under Executive Review, the VWWA expressed concerns about the regulatory language regarding minimum well yield and storage. VDH worked with the VWWA to adjust the proposed regulation and believes that the adjusted language accomplishes the minimum requirements of the 2009 legislation.

Substance: In drafting the geothermal heating system amendments, VDH followed the specific requirements spelled out in the 2009 legislation, which include:

1. The well must be constructed by a contractor properly licensed pursuant to Chapter 11 of Title 54.1 of the Code of Virginia;

2. The licensed contractor must provide a registration statement to VDH prior to construction certifying compliance with the well regulations;

3. The registration statement must include accurate property location information, a description of the geothermal heating system construction, contact information for the contractor, and a detailed site plan (drawn to scale) that shows any sources of contamination;

4. VDH will only charge a single application fee for a geothermal heating system; and

5. Once a complete application is submitted, construction may begin immediately.

In drafting the yield and storage requirements, VDH followed the specific requirements of the 2009 legislation, which requires VDH to consider the suggested minimum requirements currently contained in the well regulations. The amendment converts the recommended minimum requirements to mandatory requirements.

Issues: The express geothermal permitting process will reduce processing times and allow contractors to begin construction immediately upon submitting a proper registration statement, thereby reducing costly construction delays. Application fees for most geothermal systems will be reduced. No disadvantages have been identified at this time.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 710 of the 2009 Virginia Acts of Assembly, the State Board of Health (Board) proposes to establish requirements for express geothermal well permits. Also, pursuant to Chapter 105 of the 2009 Virginia Acts of Assembly, the Board proposes to establish minimum well storage capacity and yield requirements for residential drinking water wells. Further, the Board proposes to repeal other aspirational language.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Prior to the 2009 legislation the Virginia Department of Health (VDH) charged a $205 permit application fee for each group of ten geothermal wells. Under the proposed language VDH will charge one $205 fee for each geothermal heating system, regardless of the total number of wells constructed. For permit applications where there are ten or fewer wells in the geothermal heating system, the fee is $205 under both the current and proposed regulations. For permit applications where there are more than ten wells in the geothermal heating system, the applicant will pay a lower fee under the proposed regulations. For example, a permit applicant would pay $410 for a geothermal heating system with 20 wells under the current regulations, but would only pay $205 under the proposed regulations. Also, the express geothermal well permitting system shortens the permitting process by approximately five to ten days,¹ allowing sooner completion of projects. The proposed express geothermal well system produces a net benefit for the Commonwealth.

Chapter 105 of the 2009 Acts of Assembly mandates that the Board's regulations include minimum storage capacity and yield requirements for residential drinking wells. The statute also mandates that water well systems providers certify the storage capacity and the yield of the well on a form provided by VDH at the time the well is completed. Similar language is currently contained in the regulation; however, based on the statutory change the regulatory text would change from should to shall. The yield numbers themselves would remain the same. Changing should to shall causes the minimum storage capacity and yield requirements to be requirements rather than recommendations.

According to VDH, there have been several cases where a home buyer has learned of a low-yield well only after purchasing and moving into a new home. The amendments regarding well yield are intended to assure home buyers that an adequate supply of water exists. Thus the proposal can be beneficial to homebuyers. In some cases the minimum yield and storage requirements will result in multiple wells, storage tanks, or pumps and timers being required to meet the minimums which will raise costs. In very limited cases where adequate well yield is not found, building lots may be rendered unusable. Thus, the proposed requirement can help prevent homebuyers from being unwittingly stuck with properties that have insufficient well yield.

Businesses and Entities Affected. There are approximately 540 licensed water system providers in the Commonwealth. There are an estimated 330 water well companies. Almost all of these are considered small businesses.²

Localities Particularly Affected. There are no identified localities with disproportionate material impact by the adoption of the proposed amendments to the regulations.

Projected Impact on Employment. The proposed amendments will not likely significantly affect employment.

Effects on the Use and Value of Private Property. The proposed express geothermal well permitting system will save dollars and time for water well professionals and contractors. The proposed minimum well storage capacity and yield requirements will help protect private property owners.

Small Businesses: Costs and Other Effects. The proposed express geothermal well permitting system will save dollars and time for small water well professionals and contractors.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed express geothermal well permitting system will moderately reduce real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

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¹Data Source: Virginia Department of Health

²Ibid

Agency's Response to the Economic Impact Analysis: The agency concurs with the economic impact analysis submitted by the Department of Planning and Budget.

Summary:

The proposed amendments establish (i) requirements for express geothermal permits and (ii) minimum well yield requirements for residential drinking water wells.

12VAC5-630-271. Express geothermal well permits.

A. The issuance of an express geothermal permit is contingent upon proper registration and payment of application fees and applies to the construction of wells used solely for a closed-loop geothermal heating system.

B. A single application and a single fee are required for any geothermal well system. The fee is the same as for a single private well. A registration statement for closed loop construction permitting shall be made on a form provided and approved by the division. The registration shall include the following information:

1. The property owner's name, address, and telephone number;

2. The address of and directions to the property;

3. The proposed use of the well;

4. The name, address, telephone number, and contractor license number of the well driller;

5. A statement signed by the property owner granting the department access to the site for the purpose of inspecting the property and the well during and after the well installation until the well is approved by the department or any required corrections are made;

6. A site plan, drawn to scale, showing the proposed well site or sites, property boundaries, recorded easements, and accurate locations of actual or proposed sources of contamination (including but not limited to those listed in Table 3.1 of 12VAC5-630-380) within 100 feet of the proposed well site or sites; and

7. A statement signed by the licensed well driller that the location and construction of the well or wells will comply with the requirements of this chapter.

C. A single application fee is required for any geothermal well system, regardless of the number of wells included in the system. The fee is the same as for a single private well.

12VAC5-630-272. Issuance of express geothermal well construction permit, inspection, and final approval.

A. Issuance of the express geothermal well permit. Upon receipt of a complete registration statement and the appropriate fee, the department will acknowledge receipt of the registration statement and issue the permit with a copy given to the contractor. The construction of the geothermal heating system may begin immediately upon submission of a complete registration statement and counter-signature denoting receipt by the department.

B. Inspection. The department, at its sole discretion, may inspect the closed-loop geothermal well any time after acceptance of the registration statement until after the installation is approved. If, upon inspection of the well, it is found that the well location does not comply with the minimum separation distances or any other provision of this chapter, no inspection statement shall be issued until the deficiencies have been corrected.

C. Final approval. Upon receipt of the Uniform Water Well Completion Report, as required in 12VAC5-630-440, and completion of any inspections deemed necessary to ensure compliance with this chapter, or unless the department has evidence to indicate that the well is not in compliance with the requirements of this chapter, the local health department will provide the owner with a statement that the wells are approved for use.

12VAC5-630-460. Recommended well Water system yields for residential use wells.

A. All private drinking water systems that utilize one or more Class III wells should shall be capable of supplying water in adequate quantity for the intended usage. Failure to provide adequate capacity may cause intermittent flows and negative pressures which may cause contamination of the system through cross connections or other system deficiencies. All Class III wells should such systems, with a capacity less than three gallons per minute, shall have a capacity to produce and store 150 gallons per bedroom per day and be capable of delivering a sustained flow of five gallons per minute per connection for 10 minutes. The system should be capable of providing at least 500 gallons per hour for at least one hour if lawns or other residential areas are to be irrigated. In general, residential use wells with yields less than 3 gallons per minute require additional storage to provide uninterrupted service during peak water use times. Systems with a capacity of three gallons per minute or more do not require additional storage.

B. The certified water well systems provider shall certify the storage capacity and the yield of the well on the Uniform Water Well Completion Report.

FORMS (12VAC5-630)

Application for Sewage Disposal and/or Water Supply Permit.

Water Supply and/or Sewage Disposal System Construction Permit.

Application for: Sewage System - Water Supply, AOSE Form D (rev. 7/07).

Application for Express Class IV Well Construction Permit.

Record of Inspection - Private Water Supply System.

Uniform Well Completion Report.

Uniform Water Well Completion Report.

Registration Statement for Express Geothermal Well Permit (eff. 06/12).